Jackson v. Shah et al

Filing 9

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 3/22/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ISHMEL JACKSON,
Plaintiff,
vs.
VIPEN SHAH,
WEXFORD MEDICAL SOURCES,
SUZANN BAILEY,
DIRECTOR I.D.O.C., and
JACQUELINE LASHBROOK,
Defendants.

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CIVIL NO. 16-cv-00226-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Ishmel Jackson is currently incarcerated at Pinckneyville Correctional Center
(“Pinckneyville”), located in Pinckneyville, Illinois. Jackson brings this pro se action for deprivations
of his Eighth Amendment and Fourteenth Amendment rights pursuant to 42 U.S.C. § 1983 against
several prison officials.
This matter is now before the Court for a preliminary review of Jackson’s complaint pursuant
to 28 U.S.C. § 1915A. Under § 1915A, the Court shall review a “complaint in a civil action in which
a prisoner seeks redress from a governmental entity or officer or employee of a government entity.”
During this preliminary review under § 1915A, the Court “shall identify cognizable claims or dismiss
the complaint, or any portion of the complaint,” if the complaint “is frivolous, malicious, or fails to
state a claim on which relief may be granted” or if it “seeks monetary relief from a defendant who is
immune from such relief.” Upon careful review of the complaint and the supporting exhibits, the
Court finds it appropriate to exercise its authority under § 1915A.

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Background
According to the complaint, Plaintiff has been served a soy-based diet while incarcerated at
Pinckneyville, which over time has led to health problems. More specifically, the complaint alleges
that the Director (the “Director”) of the Illinois Department of Corrections (“IDOC”), Wexford
Health Sources Inc. (“Wexford”), Food Service Administrator Suzann Bailey, Warden Lashbrook,
and Dr. Vipen Shah have conspired to endanger Plaintiff’s health. Plaintiff has experienced the side
effects of consuming too much soy, such as constipation, headaches, gas, and a torn anus, however,
the defendant officials have not altered the soy diet. In fact, Plaintiff states that Wexford has
instructed medical personnel to abstain from treating patients complaining of soy-related issues and
from creating a “paper trail.” This is evidenced by the fact that Dr. Shah merely instructed Plaintiff to
drink more water and buy non-soy-based food from the commissary. The physician also refused to
test Plaintiff’s thyroid function. Further, the administrative grievances Plaintiff has filed and letters
written to the Director and Lashbrook have been ignored. According to the complaint, in 2009,
female inmates successfully sued IDOC over their soy diet, and they are no longer served soy-based
meals.
Based on the allegations in the complaint, the Court finds it convenient to divide the pro se
action into the following counts. The parties and the Court will use these designations in all future
pleadings and orders, unless otherwise directed by a judicial officer of this Court. The designation of
these counts does not constitute an opinion as to their merit.
COUNT 1:

Shah, Director, Bailey, Lashbrook, and Wexford violated Plaintiff’s
Eighth Amendment rights by serving him soy meals.

COUNT 2:Shah was deliberately indifferent to Plaintiff’s Eighth Amendment rights.
COUNT 3:

Shah, Director, Bailey, Lashbrook, and Wexford conspired against
Plaintiff by serving soy food at the prison.

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Discussion
The Constitution mandates that prison officials provide inmates with “nutritionally adequate
food that is prepared and served under conditions which do not present an immediate danger to the
health and well-being of the inmates who consume it.” French v. Owens, 777 F.2d 1250, 1255 (7th
Cir. 1985). Construing Plaintiff’s complaint broadly, he alleges that Pinckneyville had a policy of
serving soy-based food to prisoners, that this food has caused a number of side effects, and that highlevel officials were aware of these side effects from a previous suit yet continued to serve soy food
anyway. These allegations are sufficient to state arguable claims concerning the service of
nutritionally inadequate or dangerous food against the Director, Bailey, and Lashbrook. This is true
especially in light of the fact that this claim concerns systematic conditions at Pinckneyville and the
prison-related defendants appear to be senior level staff within IDOC. See Antonelli v. Sheahan, 81
F.3d 1422, 1428-29 (7th Cir. 1996) (personal involvement can be assumed at early stage for highlevel officials if the conditions alleged are “potentially systematic”). Accordingly, Count 1 may
proceed as to the Director, Bailey, and Lashbrook.
Count 1 must be dismissed, however, as to Wexford and Dr. Shah. Wexford is a corporate
entity and is therefore treated as a municipality for purposes of § 1983 liability. See Jackson v.
Illinois Medi-Car, Inc., 300 F.3d 760, 766 n.6 (7th Cir. 2002). “[T]o maintain a § 1983 claim against
a municipality, [a plaintiff] must establish the requisite culpability (a ‘policy or custom’ attributable
to municipal policymakers) and the requisite causation (the policy or custom was the ‘moving force’
behind the constitutional deprivation).” Gable v. City of Chicago, 296 F.3d 531, 537 (7th Cir. 2002).
Here, Plaintiff has not alleged any concrete policy or custom attributable to Wexford, and he has not
claimed that any acts by Wexford led to the alleged deprivation of his rights. As to Shah, Plaintiff has
not alleged that he had any involvement in general food service at Pinckneyville, and he is not the
type of prison official whose involvement in food service can be presumed at the outset of a suit.
Accordingly, Count 1 must be dismissed without prejudice as to Wexford and Shah.
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Plaintiff may pursue his claim against Dr. Shah, however, as to Count 2. Plaintiff claims that
Dr. Shah refused his request for a thyroid hormone level check and failed to treat him despite his
numerous health problems. To state a medical claim under the Eighth Amendment, a plaintiff must
show that his condition “was objectively serious,” and that officials acted with the requisite intent
towards that condition (deliberate indifference). Sherrod v. Lingle, 223 F.3d 605, 610 (7th Cir. 2000).
For screening purposes, Plaintiff’s claim passes the objective hurdle—he alleges that he suffered
from constipation, headaches, gas, a torn anus, and other symptoms linked to the food at the prison,
and those symptoms can indicate an arguably serious condition at screening. See Gutierrez v. Peters,
111 F.3d 1364, 1372 n.7 & 1373 (7th Cir. 1997). Plaintiff’s claim also passes the subjective hurdle—
allegations of a failure to treat can constitute indifference, depending on the circumstances. Arnett v.
Webster, 658 F.3d 742, 753 (7th Cir. 2011); McGowan v. Hulick, 612 F.3d 636, 640-41 (7th Cir.
2010). As such, Count 2 may proceed through screening.
While it is not clear from the complaint, Plaintiff also seems to bring standalone conspiracy
allegations concerning the soy-based diet at the prison (Count 3). To the extent Count 3 is an effort
to draw Dr. Shah and Wexford into Count 1, this is problematic under Federal Rule of Civil
Procedure 8, which requires litigants to provide a minimum level of “factual content” to state a claim
“that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Without more developed
allegations, Plaintiff has not made out a viable conspiracy claim, and Count 3 must be dismissed.
Over and above his Eighth Amendment claims, Plaintiff also invokes the Fourteenth
Amendment in his complaint. Plaintiff fails to articulate any distinct Fourteenth Amendment issue,
however, and the Court cannot discern one from the narrative of his complaint. Any Fourteenth
Amendment claim would appear to be redundant, because it is necessarily based on the same facts
underlying the Eighth Amendment claims that were already recognized above. See, e.g., Conyers v.
Abitz, 416 F.3d 580, 586 (7th Cir. 2005) (dismissing equal protection and Eighth Amendment claims
based on same circumstances as religious claim because religious claim “gains nothing by attracting
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additional constitutional labels”); Williams v. Snyder, 150 F. App’x 549, 552–53 (7th Cir. 2005)
(dismissing equal protection, access to courts, due process, and Eighth Amendment claims as
duplicative of retaliation and religion claims). As such, the Fourteenth Amendment claims should be
considered dismissed without prejudice.
Motion for Service of Process at Government Expense
Plaintiff’s motion for service of process at Government expense (Doc. 4) is GRANTED.
Service shall be ordered for the Defendants as set forth below.
Disposition
IT IS HEREBY ORDERED that, for the reasons stated, COUNT 1 shall PROCEED
against the DIRECTOR, BAILEY, and LASHBROOK. COUNT 1 is DISMISSED without
prejudice as to WEXFORD and SHAH.
IT IS FURTHER ORDERED that COUNT 2 may PROCEED against SHAH.
IT IS FURTHER ORDERED that COUNT 3 is DISMISSED without prejudice.
IT IS FURTHER ORDERED that the Clerk of Court shall prepare for Defendants SHAH,
DIRECTOR, BAILEY, and LASHBROOK: (1) Form 5 (Notice of a Lawsuit and Request to
Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). The Clerk is
DIRECTED to mail these forms, a copy of the complaint, and this Order to each Defendant’s place
of employment as identified by Plaintiff. If a Defendant fails to sign and return the Waiver of Service
of Summons (Form 6) to the Clerk within 30 days from the date the forms were sent, the Clerk shall
take appropriate steps to effect formal service, and the Court will require that Defendant to pay the
full costs of formal service, to the extent authorized by the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that, with respect to a Defendant who no longer can be found
at the work address provided by Plaintiff, the employer shall furnish the Clerk with the Defendant’s
current work address, or, if not known, the Defendant’s last-known address. This information shall
be used only for sending the forms as directed above or for formally effecting service. Any
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documentation of the address shall be retained only by the Clerk. Address information shall not be
maintained in the court file or disclosed by the Clerk.
IT IS FURTHER ORDERED that Plaintiff shall serve upon Defendants (or upon defense
counsel once an appearance is entered) a copy of every pleading or other document submitted for
consideration by the Court. Plaintiff shall include with the original paper to be filed a certificate
stating the date on which a true and correct copy of the document was served on Defendants or
counsel. Any paper received by a judge that has not been filed with the Clerk or that fails to include a
certificate of service will be disregarded by the Court.
Defendants are ORDERED to timely file an appropriate responsive pleading to the
complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to a United States Magistrate
Judge for further pre-trial proceedings, including a decision on Plaintiff’s motion for recruitment of
counsel (Doc. 3).
Further, this entire matter is REFERRED to a Magistrate Judge for disposition, as
contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the parties consent to such
a referral.
IT IS FURTHER ORDERED that if judgment is rendered against Plaintiff, and the
judgment includes the payment of costs under Section 1915, Plaintiff will be required to pay the full
amount of the costs, notwithstanding that his application to proceed in forma pauperis has been
granted. See 28 U.S.C. § 1915(f)(2)(A).
Plaintiff is ADVISED that at the time application was made under § 1915 for leave to
commence this action without being required to prepay fees and costs, the applicant and his or her
attorney were deemed to have entered into a stipulation that the recovery, if any, secured in the action
shall be paid to the Clerk of the Court, who shall pay therefrom all unpaid costs taxed against
plaintiff and remit the balance to plaintiff. Local Rule 3.1(c)(1).
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Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk of
Court and each opposing party informed of any change in his address; the Court will not
independently investigate his whereabouts. This shall be done in writing and not later than 7 days
after a transfer or other change in address occurs. Failure to comply with this order will cause a delay
in the transmission of court documents and may result in dismissal of this action for want of
prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: March 22, 2016
__________________________
NANCY J. ROSENSTENGEL
United States District Judge

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